When Good Students Go Bad - PDF Free Download

When Good Students Go Bad Linda Melville Associate Director, International Student and Scholar Services University of New Mexico (505) 277-8803 - lmelvill@unm.edu Elaine Kimbrell Attorney-at-Law David Ware & Associates, LLC (504) 830-5900 elaine@david-ware.com Maria Zellar SEVIS Manager University of Colorado at Boulder (303) 735-0814 - Maria.Zellar@colorado.edu

Criminal Activity And Immigration Consequences References: Federal Laws and Regulations: INA 212 (a), 8 C.F.R. 214.3(g)(1), 34 C.F.R. 99.1 99.37, 18 U.S.C 2331 and 2332b(g)(5)(B) NAFSA Adviser s Manual

Overview: Criminal Activities With Immigration Consequences Admission of, or conviction for, crimes involving moral turpitude (CIMT) Conviction of 2 or more crimes; aggregate sentence 5 yrs or more Conviction for domestically related crimes Conviction for aggravated felony Admission of, or conviction for drug-related offenses

Overview: Criminal Activities With Immigration Consequences Drug-related activities not resulting in conviction (drug trafficking and drug/alcohol abuse) Security-related offenses, whether or not resulting in conviction (espionage, sabotage, terrorist activity) Prostitution activities, whether or not convicted

All Arrests Must be admitted in all immigration contexts and on all applications where question is asked Probably will generate an NCIC hit (National Crime Information Center) which may delay visa issuance, be a problem at the port of entry, and delay approval of other immigration applications

Possible Consequences Of Criminal Activity Inadmissibility Deportability Failure to maintain status Ineligibility for adjustment of status and other immigration benefits

Definitions Inadmissible = Not eligible for visas, admission to the US and permanent residence Deportable/Removable = Present in the US in violation of immigration laws. May be removed for failure to maintain status.

Conviction Immigration law defines convictions as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

Who Are We Dealing With? Local police/ courts/ judges/ district atty. ICE Investigations Detention and Removal CBP DOS FBI

Mechanics Of An Arrest Miranda warnings Taken into criminal custody How long? Criminal Bond? Appearance before a Criminal Court Judge

Special Considerations For Foreign Students Will the police notify ICE of the arrest? Will immigration status effect bond? Will police/judge advise as to immigration consequences?

Arrest to a Charge An arrest does not equate to being charged with a crime There is a formal charging process (indictment, bill of information/particulars) Details what law has been violated

Charge To???? Dismissal or nolle pros.- no conviction Withheld adjudication possible conviction under INA Plea Trial

Student s Rights In The Criminal Process Rights are not dependant on immigration status Right to remain silent Right to an attorney public defender Right to examine witnesses/ evidence May or may not be advised of immigration consequences of criminal conviction May or may not be advised that plea/ adjudication counts as conviction for immigration

Right To A Phone Call? In the arrest process given a phone call Collect call usually cannot be to a cell phone After the one call most jails have a phone card system To receive calls from jail/ detention facility may have to be pre-authorized by a phone company

Once There Is A Conviction. Not serious enough for ICE to pick-up OR no conviction NCIC, FBI Database, etc Serious Crime ICE Custody ICE Hold

In ICE Custody May be eligible for immigration bond ICE can give bond Bond (or determination of no bond) may be reviewed by an Immigration Judge ICE will pressure student to take voluntary removal Student has option to have Immigration Judge review removability from the United States Will be given a Notice to Appear

What Crimes Do DSOs Have To Report? 8 CFR 214.3 (g)(2)(ii)(d): Any disciplinary action taken by the school against the student as a result of the student being convicted of a crime If an international student commits a crime and it is headline news, is the PDSO/DSO required to report the student to SEVIS?

Family Educational Rights And Privacy Act (FERPA) FERPA protects students from having educational records disclosed Also applies to international students, but is superseded in some cases by other laws: (e.g. 214.3(g)(1) DSO must furnish records to DHS upon request) FERPA Regulations - 34 CFR 99

Exceptions To FERPA For All Students (Disclosure Allowed) To internal school officials To school where student seeks admission To federal, state and local officials In connection to financial aid To organizations conducting studies on behalf of educational institutions To accrediting agencies

Exceptions To FERPA For All Students (Disclosure Allowed) To parents of a dependent student To comply with judicial order or subpoena In health and safety emergencies Of Directory Information To parent of non-student To a victim of a crime of violence

When DHS Requests Information SEVIS required data exception found in IIRIRA 641(c)(2) FERPA. The Family Educational Rights and Privacy Act of 1974 [20 U.S.C. 1232g] shall not apply to aliens described in subsection (a) of this section to the extent that the Attorney General determines necessary to carry out the program under subsection (a) of this section

When DHS Requests Information 8CFR 214.3(g)(1) Request for info on individual student: 3 work days to respond Information on a class of students: 10 days Information on a student in custody: same day response, and orally

What To Do When ICE Shows Up? Don t panic Ask for ID and ask for requests to be put in writing Remember FERPA: cannot release non public info regarding students except in certain circumstances Remember the FBI is not the same as DHS, they must have a subpoena or ask ICE to make the request

When Else Does The Issue Of Criminal Conduct Arise? At the Embassy Yates Memo, Requesting Medical Re-examination, 1/16/2004; DOS Memo about how to implement June 2007, R 072132Z (CLASS hit; may be ineligible under 212(a)(1)(A)(iii)- physical or mental disorder posing threat) Single DUI conviction in past 3 years or more than one conviction anytime, or any other conviction for alcohol or drug-related offenses, have to go for physical with panel physician which may mean visa denial Any prior drug use means 3 year inadmissibility Other security delays because of hit

When Else Does The Issue Of Criminal Conduct Arise? At the Port of Entry Officer can ask questions and will often questions in-depth fishing for confessions of other crimes May send student to secondary inspection. No right to an attorney May give the student deferred inspection If serious enough, will refuse entry or take student into custody. Will be classified as an arriving alien Should travel with certified copies of court records for proof (both at Embassy and POE)

Helping To Prevent Criminal Conduct Know your state and local laws that can be pitfalls for your students (underage drinking rules, DUI checkpoints) Know the culture of the law enforcement officials (party patrols) Provide information about alternative activities and means of transportation

How Do International Student Advisers Advise Students? At orientation It s nice to have a visit from a campus police officer Explaining that an MIP or fake I.D. offence has different consequences for an international student than it might for their U.S. citizen roommate is a good idea Recommend the student find both a criminal and an immigration attorney if the student is accused of committing a crime Put information in the student handbook Provide handouts It is a good idea to have a release form signed, particularly for sponsored students

Reasons To Terminate SEVIS Records Unauthorized withdrawal Death Unauthorized employment Unauthorized drop below full course of study Authorized drop below full course of study time exceeded Change of nonimmigrant classification Change of nonimmigrant classification denied Expulsions Suspension Absent country for five months Failure to enroll Costs exceed resources Transfer student no show Denied transfer Extension denied Otherwise failing to maintain status Violation of change of status requirements Change of status denied Change of status withdrawn Change of status approved Transfer withdrawn No Show manual termination Authorized early withdrawal No Show system termination School withdrawn

Reporting Termination Events 8 CFR 214.3(g)(3): SEVIS Reporting Requirements Event-based reporting (21 days of the occurrence) Periodic Reporting (30 days after the deadline for registering for classes)

Reporting Termination Events Institutional Policy Question Does the PDSO or DSO terminate immediately upon constructive knowledge of the event? Why? Does the PDSO or DSO wait the full 21 days or 30 days to report the termination? Why?

Advising A Terminated Or Soon To Be Terminated Student Try to get the student to come in as soon as possible for advising Advise on grace periods: no grace period or a 15- day grace period Advise on regaining F1 status: exit/re-entry or reinstatement Advise on immigration consequences: get a lawyer? Does the school request removal of the CEU flag? DHS Trip: http://www.dhs.gov/xtrvlsec/programs/gc_11696769 19316.shtm

Effects Of SEVIS Termination Real Time DHS notification CEU evaluates the record and determines enforcement priority. May not do anything at all, but We recently had a student who was terminated in SEVIS and picked up by immigration less than 6 hours after termination.

What Happens To A Terminated Student? Certain profiles are almost always taken into custody. ICE will almost always determine that the student is not eligible for bond. Student can request bond redetermination by a judge, but it may take a few weeks to get the hearing. DHS will pressure/ encourage voluntary return

What Happens To A Terminated Student? Student has option to have removability reviewed by an Immigration Judge removal proceedings. Reinstatement can be a valid defense to removal BUT student is racing the removal clock and the docket of the Court Student cannot leave before resolution of removal proceedings or may face in absentia removal order

If The Student Is Lucky Enough To Avoid ICE. Expect difficulty traveling May have to pay new SEVIS fee If obtaining a new visa, will have to disclose prior violations which could affect issuance of a new visa.

Advice Know your local jail Know a local bondsman Know an immigration bondsman Know a GOOD criminal attorney Know a GOOD immigration attorney Students should get in touch with an immigration attorney as soon as possible

Advice Get the A# as soon as possible Date of Birth, Name and Nationality can work in a pinch Students should be careful what they sign!!!! BE PROACTIVE

ICE Detention And Removal Contacts/Facilities Detention & Removal - http://www.ice.gov/about/dro/contact.htm Federal Detention Facilities - http://www.bop.gov/datasource/execute/dsf acilityloc

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